Karnataka High Court
Smt. D S Suma vs K R Lokesh on 3 December, 2012
Author: K.Bhakthavatsala
Bench: K. Bhakthavatsala
Crl.RP.657/2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF DECEMBER 2012
BEFORE
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
CRIMINAL REVISION PETITION NO.657/2012
BETWEEN
1. Smt. D S Suma,
D/o Shashidhara Murthy,
W/o K R Lokesh,
Age: 27 years,
R/o Doddameti Kurke,
Kanakatte Hobli,
Arasikere Taluk.
2. S L Rakshith,
S/o K R Lokesh,
Age: 7 years,
Minor.
Rep. by his natural mother
Guardian, Smt. D S Suma,
W/o K R Lokesh,
R/at Doddameti Kurke,
Kanakatte Hobli,
Arasikere Tq. Petitioners
(By Sri A S Mahesha, Adv.)
Crl.RP.657/2012
2
AND
1. K R Lokesh,
S/o K S Rajashekar,
Age: 37 years,
Teacher,
Govt. High School,
Kalagatagi,
Dharwad Dist.
2. K S Rajashekar,
S/o Shivarudrashetty,
Age: 65 years,
R/at Doddameti Kurke,
Kanakatta Hobli,
Arasikere Tq. Respondents
(By Sri H Kantharaja, Adv., for R-1 and 2)
---
This Criminal Revision Petition is filed under Section
397 of the Code of Criminal Procedure, praying to set
aside the order passed in Crl.A. No.109/2010 dated
25.8.2011 on the file of Addl. Sessions Judge, Hassan, and
confirm the order passed in Crl.Misc.No.387/2009 dated
22.11.2010 on the file of JMFC, Arasikere.
This Petition coming on for Admission this day, the
Court made the following:
ORDER
Revision Petitioners, who are applicant Nos.1 and 2 in C.Misc.387/2009 on the file of JMFC at Arasikere, are Crl.RP.657/2012 3 before this Court under Section 397 of the Code of Criminal Procedure, challenging the order dated 25.8.2011 made in Crl.A. No.109/2010 on the file of Addl. Sessions Judge at Hassan.
2. Learned Counsel for the revision petitioner submits that the First Appellate Court erred in setting aside the order made on an interlocutory application directing the respondents to give custody of the child to petitioner No.1. He also submits that no evidence was required to consider the interlocutory application for interim custody of the minor child and the impugned order may be set aside.
3. Learned Counsel for the respondents submits that petitioner No.1 got herself examined as P.W-1, but she was not cross-examined and at that stage, an interlocutory application came to be filed for interim custody of the child and the trial Court, on the basis of the evidence of Crl.RP.657/2012 4 applicant No.1, allowed the application and directed the respondents to hand over the custody of the child/petitioner No.2 to petitioner No.1 and the First Appellate Court has rightly set aside the order of the trial Court made on 22.11.2010 and remanded the matter with a direction to hold detailed enquiry on the application filed by the first petitioner under Section 21 of Domestic Violence Act, and dispose off the matter, in accordance with law, as expeditiously as possible and there is no illegality or infirmity in the impugned order.
4. At the very outset, it must be mentioned that since petitioner No.1 is seeking custody of petitioner No.2, making petitioner No.2 as a party-petitioner No.2 to the Revision Petition, is not correct.
5. Learned Counsel for the respondents disputes the marriage of petitioner No.1 with respondent No.1 and paternity of the child. He also submits that the child is Crl.RP.657/2012 5 not in the custody of respondents and the child was not born to the first husband of petitioner No.1. Under such circumstances, the trial Court passing an interim order for custody of the child was bad in law and the First Appellate Court is justified in setting aside the order made on an interlocutory application by the trial Court and remanding the matter. I see no illegality or infirmity in the impugned order.
6. Accordingly, Revision Petition is disposed off. Keeping in view that the matter is pertaining to custody of the child, the trial Court is directed to dispose off the matter on merits on or before 31.3.2013, in accordance with law, untrammelled by the observations made in this order.
Sd/-
Judge Bjs